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HEMINGWAY ESTATE. (05/28/59)

May 28, 1959

HEMINGWAY ESTATE.


Appeals, Nos. 312 and 313, Jan. T., 1958, from order of Orphans' Court of Columbia County, May T., 1957, Nos. 24 and 25, in re estate of R. S. Hemingway, deceased. Decree affirmed. Audit of account. Adjudication filed dismissing exceptions to report of auditor and confirming auditor's report, and order entered, opinion by SHEELY, P.J., specially presiding. Commonwealth appealed.

COUNSEL

Ralph S. Snyder, Deputy Attorney General, with him Hervey B. Smith, and Thomas D. McBride, Attorney General, for appellant.

David B. Skillman, with him J. Horace Churchman, Henry S. Drinker, J. Atlee Cryder, Donald A. Lewis, and Frank E. Kepner, for appellees.

Before Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Bok

[ 395 Pa. Page 653]

OPINION BY MR. JUSTICE BOK

R. S. Hemingway, a distinguished member of the Columbia County Bar, died on April 27, 1955.

Just thirty-one days before, on March 26th, he executed a will, a trust agreement, and a codicil, all on the same day. He dated the will and trust agreement back to October 15, 1954, and the codicil to December 10, 1954. This was done, as he said himself, to obviate the thirty-day limitation, in case he should die within it, set out in the Wills Act of April 24, 1947, P.L. 89, § 7; 20 P.S. § 180.7(1) on bequests to charities.

There was an old trust agreement, dated June 21, 1926, to which the instrument dated October 15, 1954, was an amendment. The bulk of the trust corpus consisted of insurance policies, and the amendment changed the disposition and beneficiaries of the proceeds. The following wording raises the question now before us. It reads: "Upon the death of the Settlor, the Trustee agrees to place the proceeds of said insurance policies in a trust and pay the income from said trust estate in the same manner and to the same persons as is set forth in the Settlor's last will and testament dated October 15, 1954; and at the termination of the trust to pay the principal or corpus in said trust estate to the same institutions as are set forth in the Settlor's said last will and testament."

The Commonwealth, appellant, argues that the insurance proceeds were subject to inheritance tax under the Act of June 20, 1919, P.L. 521, § 1(d), and were not exempt under the amending Act of March 28, 1929, P.L. 118; 72 P.S. § 2301(d), which reads as follows: "... The proceeds of policies of life insurance, payable otherwise than to the estate of the insured, and whether paid directly by the insurer to beneficiaries designated in the policies, or to a trustee designated therein, and held, managed, and distributed by such trustee to

[ 395 Pa. Page 654]

    or for the benefit of such persons or classes of persons under such plan and in such estates as may have been prescribed by the insured under agreement with such trustee, shall not be ...


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